Supreme Court Justice of Mexico
Lawyer
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On December 20, 2013, Articles 25, 27, and 28 of the Mexican Constitution were amended as part of the so-called “energy reform.” Due to the preeminence of the constitution within the Mexican legal order, the content of these new constitutional precepts will be decisive to the manner in which the Mexican energy system is organized, regulated, and operated, especially in its electrical and hydrocarbons sectors. Therefore, determining the fundamental elements of this reform is essential to understanding both the legal permissions in such industries as well as the restrictions to private investment or other actions that prevail in the system.
Contrary to the majority of national constitutions, the Mexican Constitution contains broad rules that, on the one hand, regulate the use of certain goods that are necessary for the production of energy and, on the other hand, regulate the activities and services necessary to produce and/or distribute energy (lato sensu). Understanding the nature of both elements can only be achieved through a historical analysis of the constitutional dynamics that led to the recent reforms. This is the case because, notwithstanding the fact that some aspects of the Mexican energy system underwent radical changes through the reforms in 2013, some of its structural elements have remained the same regarding the conceptual distinction between sectors, goods, and services.
Based on our identification of the main constitutional elements of the energy system, we will consider the main aspects of the legislative process that led to the constitutional reforms. It is necessary to stress that the approach of this study is to abstract the legal categories of analysis for these constitutional amendments and not to identify the determining factors for the political, financial, or economic decisions that motivated the reform. Afterward, we will separately consider the two most important sectors of the Mexican energy system since the entry into force and effect of the constitutional reform: the hydrocarbons sector and the electrical industry. Finally, we will formulate some brief conclusions derived from these elaborated considerations.
In order to avoid confusion, it is necessary to clarify two fundamental issues. First, this work analyzes the new constitutional framework exclusively and not other legal instruments such as laws, acts, and agreements that already have been—or are about to be—issued. The approach of this text has already been defined previously: Although the constitutional framework may not constitute the total legal framework regarding Mexican energy law, it grants us the possibility to define the regulatory environment from which the rest of the rules are derived.
The second clarification, which is related to the former, is based on the decision by Congress (Constituyente Permanente, which is the formal body that amends the constitution) to place a large amount of regulatory content in transitional articles. Unlike general legislative practices, this reform made extensive use of transitional articles, not only to establish temporal criterion of regulatory validity or to order that certain operational actions may be conducted by other authorities, but rather also to cover substantial elements of regulatory matters. Therefore, far from only reflecting the specified timeframes for implementation, a comprehensive study of the reform involves carefully considering the different transitional articles. The purpose was not to take the organizations, responsibilities, or processes into account, but rather the content of some precepts that, being incorporated in a standard of supreme hierarchy, must be considered by the administrative or legislative authorities at the time the very standards through which the constitutional reform must be implemented are issued.
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